Richard North, 05/08/2017  

More and more of late, the chatterati in the Brexit debate remind me of a bug which has flown in through the window, just before it's squashed flat. For those brief moments as it scuttles around, purposefully seeking to come to terms with its new environment, it hasn't the least idea of the fate about to befall it.

You can see this in the latest IOD Report written by rising star Allie Renison, head of EU and trade policy. Dimly, like so many in her circle, she has realised that the Brexit negotiations are not going to deliver on time and we will, therefore, need this now fashionable thing which they call "transition".

Without really understanding what it is, or what is involved, Renison attempts to set out the options she believes are available, listing possibilities to cover what can only be described as somewhat confused ground.

First on this list is an extension of the "Article 50 negotiating window" in the next 6-12 months – for an unspecified period. This, we are told, is the simplest way of allowing sufficient time for full negotiations to include a comprehensive free trade agreement, and ensuring one single period of adjustment and implementation for business, negotiators and government machinery to grapple with.

And that is the measure of the beast. Negotiations, in the normal meaning of the word, encompass talks to determine an outcome. But now, it seems an extension to that process acquires in the mind of the IoD a new, completely different meaning. It becomes a transition.

Next on the list we get the UK entering into the EEA Agreement as an independent contracting party. This, in the view of the IoD, "would likely require re-entry into Efta and a subsequent negotiation into the EEA agreement for the UK as a new contracting party outside of the EU".

This, though, is only one view of a potentially complex option. Some argue that we do not need to rejoin Efta while others maintain that we retain EEA membership even if we leave the EU. In any event, we are already an independent contracting party to the Agreement. As a transitional arrangement, the Efta/EEA option is, of course, one favoured by this blog but is looking an increasingly forlorn prospect. Nevertheless, I would not dispute that it is a valid candidate and probably still the best solution.

Thirdly, we see suggested prolonging the application of the EU acquis, an arrangement whereby the UK agrees to continue to applying EU law for a transitional period after it formally leaves. Why this should be included as a valid transitional arrangement, though, is something of a mystery. In what was originally termed the Great Repeal Bill, and has now become the European Union (Withdrawal) Bill, the intention is already to re-enact existing EU law.

Reading into Renison's explanation, however, it would seem that she has in mind something more ambitious. It would involve an agreement with the EU whereby the treaties (and all the laws made thereunder) would continue to apply for a limited period, allowing for a phased implementation of any trade agreement, or a phased reduction in the application of the treaties.

This, Renison believes, would be far more comprehensive and likely simpler to negotiate with the EU, having been explicitly floated in the Council's original negotiating guidelines. But from a UK political perspective, one wonders whether it would be tenable, amounting as it would to a direct contradiction of the prime minister's promise that "Brexit means Brexit". Such an arrangement would amount to us remaining in the EU for however long it lasts.

As great a barrier though is the nature of Article 50. Once a settlement is concluded, the EU treaties cease to apply to the UK. So, for the treaties then to re-apply would require the negotiation of a specific treaty between the EU and the UK as a recently departed member.

How exactly that would work is not clear, but it would certainly require the unanimous agreement of all parties, and formal ratification. It might even require a UK referendum.

Where there is to be a phased reduction in the treaties, that would require complex legal draughtsmanship, creating an opportunity for dispute amongst Member States and between the EU and the UK. This, then, is very far from being an easy or even a swift option. It could easily absorb all the time we have left between now and 29 March 2019.

By this means, we have the distinct possibility that seeking to extend the EU acquis beyond exit day might prove as complex as negotiating the comprehensive agreement that we wish to define our long-term relationship with the EU.

With that, though, we have not three but two theoretical transitional options, neither of them very promising. As for the rest, Renison lists as other options: maintaining alignment with the EU's Common External Tariff; using Brexit-related legislative bills to incorporate ongoing alignment to EU rules, after responsibility for these functions have been transferred to the UK; signing up to the Common Transit Convention; establishing a joint EU-UK customs cooperation committee and trade contact group.

Yet there is nothing here which actually amounts to a transition agreement, and there is certainly nothing there which could fill the gap between the termination of our membership of the EU and the application of an as yet undefined treaty settling our ongoing relationship with the EU.

That leaves us what Renison describes as a "parallel sources" agreement before the UK leaves the EU. This would bind a transitional deal (as yet undefined) into both parties' respective legal systems.

On the one hand we would have a legal mechanisms, created through an Act of Parliament (or amendment to the 1972 ECA which would be retained in domestic law after the Withdrawal Bill is complete) and "EU regulation that would bind the both parties into the above".

This madcap idea apparently stems from an idea floated by an Oxford academic. Its most obvious flaw is that unless the agreement made under the aegis of international law, it will not be binding. Either party could ignore its provisions, and either could terminate it at any time.

Should it acquire the protection of international law, though, it would - as this note points out – become a treaty within the meaning of the Vienna Convention. The term treaty describes an international agreement concluded in writing between states which creates rights and obligations in international law. Whatever name it might be given, if it looks like a duck and it quacks like a duck, it's a treaty. And if it is a treaty, we're back where we started.

Essentially, therefore, Allie Renison and the IoD have nothing to offer which would break the current impasse. The Guardian has it that the Institute wants ministers to end their squabbles and "nail down" a transitional deal, but it has nothing that could take a nail.  Its ideas have all the substance of a half-set blancmange. 

Therein scuttles our "bug" heedless of its fate. The government has simply failed to pursue Brexit with the vigour and intelligence needed to craft a resolution in time, leaving us bereft of realistic options. We can allow our bug to scuttle around a little longer. But it has little time left before it is crushed into oblivion.

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